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3 Prevention of Terrorism Does Not Require Suspension of Standards and Oversight  Terrorism poses a grave and imminent threat to our nation.  The government must have strong investigative authorities to collect information to prevent terrorism.  These authorities, however, must be guided by the Fourth Amendment, and subject to Executive and judicial controls as well as legislative oversight and a measure of public transparency.

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4 Abuses of civil liberties and human rights – outside the PATRIOT Act  The torture at Abu Ghraib and other locations.  The detention of US citizens in military jails without criminal charges.  The detention of foreign nationals in Guantanamo and other locations.  The rendition of detainees to other governments known to engage in torture.  Haphazard and prolonged post 9/11 detentions of foreign nationals in the U.S., the physical abuse of some and the blanket closing of deportation hearings.  Abuse of the material witness law to hold individuals in jail without charges.

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6 “The Wall” – Primary Purpose and Info Sharing Foreign Intelligence Surveillance Act (FISA) vs criminal o Criminal investigators are now able to initiate and control FISA surveillances. o FISA court now issues more surveillance orders in national security cases than all the other federal judges issue in all other criminal cases o Lack of full right to challenge at trial Sharing grand jury, other criminal info

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7 Business Records Provision Court order to compel disclosure of any kind of records, upon the mere claim that they are connected with an intelligence investigation. o Gives the FBI authority to get court order to seize any records of any entity. Includes libraries and bookstores. o No factual basis need be stated. o No particularized suspicion (vs. “agent of a foreign power”). o Allows the FBI to obtain whole databases of information, including records of people not suspected of any wrongdoing. o Judges must approve every request submitted by the government. o Gag order applies.

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9 Emergency Disclosures Section 212 o Authorizes an ISP to disclose , stored voic , draft documents and other stored information to law enforcement when government states that there is an emergency involving a threat to life. Section 217 o Authorizes the government to carry out real-time surveillance when an ISP, a university, or another system operator authorizes the surveillance on the grounds that there is a “trespasser” within the operator’s computer network.

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10 “Off the Books” Surveillance  There is never a report to a judge. (In contrast, under both Title III and FISA, when electronic surveillance is carried out on an emergency basis, an application must be filed after the fact.)  There is no time limit placed on the disclosures or interceptions. (A Title III wiretap cannot continue for more than 30 days without new approval.)  There is never notice to the person whose communications are intercepted or disclosed.  The interceptions and disclosures are not reported to Congress.

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11 Sneak and Peek Searches Allows law enforcement agencies to search homes and offices without notifying the owner for days or weeks after. Not only in terrorism cases, but in all cases. Requires search warrant. Standard: whenever there is reasonable cause to believe that notice at time of search may result in o danger of physical harm o flight from prosecution, o destruction of evidence o intimidation of potential witnesses; o otherwise seriously jeopardize an investigation or unduly delay a trial.

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14 No Tech Mandates. No Data Retention Requirements Section 222: “Nothing in this Act shall impose any additional technical obligations or requirement on a provider of a wire or electronic communication service or other person to furnish facilities or technical assistance.”

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16 Security and Freedom Enhancement (SAFE) Act (cont’d) FISA Orders for Library and Other Personal Records (Section 215)  restore a standard of individualized suspicion for obtaining a FISA order - facts indicating a reason to believe the tangible things sought relate to a suspected terrorist or spy  give the recipient of a FISA order the right to challenge the order  require a showing by the government that a gag order is necessary  place a time limit on the gag order (which could be extended by the court)  give a recipient the right to challenge the gag order

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17 Security and Freedom Enhancement (SAFE) Act (cont’d) National Security Letters (Section 505)  restore a standard of individualized suspicion - reason to believe the records sought relate to a suspected terrorist or spy  give the recipient of an NSL the right to challenge the letter and the nondisclosure requirement  place a time limit on the nondisclosure requirement

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19 Security and Freedom Enhancement (SAFE) Act (cont’d) Domestic Terrorism Definition (Section 802)  PATRIOT Act’s overbroad definition of domestic terrorism could include acts of civil disobedience by political organizations.  SAFE Act would limit the qualifying offenses for domestic terrorism to those that constitute a federal crime of terrorism, instead of any federal or state crime, FISA Public Reporting

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20 PATRIOT Expansion Administrative Subpoenas  No judicial approval  No notice to interested party  Not normally available to FBI  Different from grand jury subpoena